Court File and Parties
Ontario Court of Justice
Date: November 6, 2018
Court File No.: Halton 16/3263
Between:
Her Majesty the Queen
— and —
Marcus Hammett
Before: Justice Lesley M. Baldwin
Heard: September 7, 2017; January 10, 2018; May 14, 2018; June 22, 2018
Written Submissions Received by the Defendant: July 30, 2018
Written Submissions Received by the Crown: August 28, 2018
Reasons for Judgment Released: November 6, 2018
Counsel
Ms. Roda and Ms. Reid — counsel for the Crown
Ms. Spence — counsel for the defendant Marcus Hammett
Judgment
BALDWIN J.:
Introduction
[1] Marcus Hammett is charged with Impaired Operation of a motor vehicle contrary to s. 253(1)(a) of the CCC and Failing to Provide a Breath Sample contrary to s. 254(3.3) of the CCC on October 26, 2016 in Milton, Ontario.
[2] The second count should read contrary to s. 254(5) of the Criminal Code. No mention was made of this at trial and there has been no prejudice to the accused as a result.
[3] The Crown proceeded summarily. At a Judicial Pre-Trial held on September 20, 2017, the matter was set for one day of trial.
[4] On day one of this trial it was apparent that time estimate was completely inadequate.
[5] Issues at the outset of trial were as follows:
Applications alleging breaches of sections 8, 9 and 10(b) of the Charter and the exclusion of evidence pursuant to s. 24(2);
Voluntariness voir dires on statements made by the accused during the course of the investigation;
The calling of an additional Crown witness;
The possibility that the accused may testify on the Charter Applications and the voluntariness voir dires.
[6] At the end of trial, the issues were two, namely: (1) has the Crown proven that Mr. Hammett was impaired to operate a motor vehicle by the consumption of alcohol beyond a reasonable doubt?; and (2) has the Crown proven the requisite mens rea with respect to the charge of failing to provide a breath sample into the Intoxilyzer?
Summary of Events
[7] On Wednesday October 26, 2016 at 2:52 a.m., police responded to a single motor vehicle collision at Millside Drive north of Main Street East in the Town of Milton. Police were advised by civilian witness, Christine Timms, that she had observed the accused exit the driver's side door of the vehicle with a limp after his vehicle had struck a guard rail. She had overheard the accused talking on his cell phone about just having been at a bar.
[8] Officer Muller attended the scene at 2:56 a.m. and located the accused in front of his vehicle slumped over the guard rail holding his right ankle. The accused's vehicle had sustained significant front end damage, as well as the guard rail. The air bag had been deployed in the collision.
[9] Officer Muller approached the accused and noted an over-whelming odour of alcohol emanating from him. The accused stated that he had been playing 'pools', referring to pool, and admitted to drinking at a bar. He was the sole occupant of the vehicle and had been driving.
[10] Officer Muller formed his RPG to arrest the accused for Impaired Operation and placed the accused under arrest at 2:58 a.m.
[11] The accused's ankle was broken as a result of the collision and he was transported to Milton District Hospital by ambulance.
[12] After speaking to Duty Counsel at the hospital, the accused was turned over to a qualified Intoxilyzer technician, Officer Hodge, for testing at 4:28 a.m. After 3 minutes he was charged with failing to provide a breath sample.
Evidence Relevant to the Fail to Provide Breath Sample
[13] I will deal with this charge first, as pursuant to s. 258(3) of the Criminal Code of Canada, evidence that the accused, without reasonable excuse, failed or refused to comply with a demand under section 254 is admissible and the Court may draw an inference adverse on a charge of impaired driving contrary to section 253(1)(a) of the Criminal Code.
[14] The onus is on the Crown to prove beyond a reasonable doubt that the accused was given a reasonable opportunity to comply with the breath demand in all the circumstances.
[15] The onus is on the accused on a balance of probabilities to raise the defence of reasonable excuse.
Evidence of P.C. Hodge
Examination in-Chief
[16] At one point he had to unplug the instrument and move it closer so that Mr. Hammett could provide samples. (Transcript of Proceedings, September 7, 2017 at page 117)
[17] He spoke with Dr. Gilbert who advised that Mr. Hammett was able to provide a sample. (September 7, 2017 at page 118)
[18] He read the breath demand and noted Mr. Hammett's response was, "No, I don't understand. I'm in a hospital bed, fucked." (September 7 at pg. 119) (Note: The January 10, 2018 transcript has the statement as "I'm in a hospital bed, fuck". This appears to be the correct transcription based on the officer's notes)
[19] He explained in layman's terms and then re-read the demand. Asked if Mr. Hammett understood, he noted a response of, "Yeah, Okay. Fuck." (September 7, 2017 at page 120)
[20] He explained how to provide a sample – that it is important to make a tight seal around the mouthpiece, take a deep breath and (provide) a steady flow of air to keep the instrument's tone going. Mr. Hammett appeared to understand. (September 7 at pg. 121)
[21] Once Mr. Hammett came back into the room after the call to Duty Counsel, he appeared quite agitated and frustrated. Officer Muller was there. Mr. Hammett was yelling and screaming. This was not just after the call to the lawyer, it was when P.C. Hodge originally entered into the hospital. (September 7 at pg. 125)
[22] He explained how to provide a sample again after the call to counsel and Mr. Hammett nodded that he understood. (September 7 at pg. 126)
[23] P.C. Hodge had done roughly 50 tests before and gave the same instructions. (September 7 at pg. 126).
[24] Nothing about Mr. Hammett made it appear that he could not provide a breath sample. He was lying in a hospital bed, on his back, slightly elevated. He was communicating very clearly. (September 7 at pg. 127)
[25] He put his lips to the mouthpiece and looked at P.C. Hodge and there was no tightness to his lips on the mouthpiece and he did not put air in his cheeks. P.C. Hodge told him to blow and he said "I am". When he opened his mouth, no air exhaled. (September 7 at pg. 129)
[26] P.C. Hodge provided a new mouthpiece and did not see any obstructions. (September 7 at pg. 130)
[27] P.C. Hodge explained to him that failing to provide a sample would lead to a criminal charge. Mr. Hammett said, "Yeah, I'm blowing. Fuck, come on guys." (September 7 and at pg. 131)
[28] P.C. Hodge felt Mr. Hammett was being very confrontational and that it did not matter what he said, Mr. Hammett would not accept it. He suspected from this point in time that he may not get a reading. (January 10 at pg. 8)
[29] In 50 tests he has never found a blockage to a mouthpiece. (January 10 at pg. 13)
[30] Mr. Hammett was yelling and screaming profanities between the tests. (mentioned January 10 at pg. 13, although not mentioned September 7 during the same line of questioning)
[31] Mr. Hammett attempted again and once he heard a tone from the instrument he stopped immediately. Officer Hodge continued to encourage him to blow continuously and he could hear a light airflow that then stopped, like an off-and-on blowing, and he believed the mouthpiece was being blocked by Mr. Hammett's tongue. (January 10 at pg. 13)
[32] P.C. Hodge stated, "I believe that you're blocking it with your tongue" and said Mr. Hammett then stopped blowing. He explained that he would give another chance, but would need a better effort, and at this point he is only arrested and not charged but could be charged with refuse. Mr. Hammett stated "I'm blowing." (January 10 at pg. 14)
[33] At this point (after cautioning but prior to the final attempt) he believed a sample would not be provided. (January 10 at pg. 15).
[34] He did not have concerns about Mr. Hammett's physical condition to blow. (January 10 at pg. 15)
[35] He advised Mr. Hammett it was his last opportunity and his lips rested on the mouthpiece with no effort, just staring at him. He told him to go ahead, but there was still no effort so he removed the mouthpiece and there was no exhale of air. (January 15 at pg. 15)
[36] Mr. Hammett was then arrested for refuse. (January 15 at pg. 16)
[37] He does not believe Mr. Hammett responded to being told he was charged with refuse. (Transcript of Proceedings, May 14, 2018 at page 4)
[38] There were three minutes from the start of the test to the charge. (May 14 at pg. 5)
Cross-Examination
[39] The grounds sheet does not address the amount of pain that Mr. Hammett was in. (May 14 at pg. 9)
[40] There was discussion about Mr. Hammett's responses to rights to counsel and that he requested to speak to counsel. (May 14 at pg. 10)
[41] P.C. Muller did not advise him that he had to repeat the rights to counsel, caution or breath demand several times or why he felt the need to do so. (May 14 at pg. 10)
[42] He might treat a person differently if he knew they needed things repeated. (May 14 at pg. 10)
[43] There were no discussions about Mr. Hammett's pain. He was just aware that he had a broken ankle. (May 14 at pg. 11)
[44] The instrument was positioned to Mr. Hammett's right side near his head. Mr. Hammett would have had to turn his body, or at least his head, to see the instrument. (May 14 at p. 12)
[45] He was not briefed on Mr. Hammett's injuries. He was not aware of the severity of the broken ankle, just that it was broken. He saw Mr. Hammett's foot and it was off to one side. (May 14 pg 12-13).
[46] He made no notations about visible pain and Mr. Hammett did not reference his foot when speaking with him. (May 14 at pg. 14)
[47] He did not believe that Mr. Hammett was interested in his foot at all, despite acknowledging pain can manifest as frustration and can cause a person to be emotional. (May 14 at pg. 15)
[48] He made no notations about a left shoulder injury and did not recall Mr. Hammett having to lift his left arm. (May 14 at pg. 15)
[49] It did not cross his mind that he may just need to slow the process down (of reading the breath demand) or speak a little slower. (May 14 at pg. 17)
[50] He disagreed that Mr. Hammett was cooperative and will not speak for P.C. Muller's assessment. (May 14 at pg. 18)
[51] He did not write down everything said by Mr. Hammett. (May 14 at pg. 21)
[52] He was not part of the process that P.C. Muller undertook to contact counsel or that there had been a request for counsel of choice. (May 14 at pg. 23)
[53] Three minutes passed from when the instrument indicated it was ready to the point of the refuse charge. (May 14 at pg. 25)
[54] P.C. Hodge was expecting that Mr. Hammett would provide a sample. P.C. Hodge stated he did not know that he would not provide a sample until the start of the testing. (May 14 at pg. 26)
[55] He explained the testing procedure the same way every time. (May 14 at pg. 26)
[56] He did not change his explanation because he believed Mr. Hammett was understanding. He acknowledged that if he was incorrect about Mr. Hammett's level of comprehension, he would not know because he did not use different language. (May 14 at pg. 27)
[57] P.C. Hodge changed the mouthpiece before the second attempt to ensure no obstructions. (May 14 at pg. 31)
[58] P.C. Hodge noted that he advised Mr. Hammett to blow into the mouthpiece, he said "I am" and that when the mouthpiece was removed there was no exhaling. The officer then reversed the order that this occurred in his evidence, saying the mouthpiece was removed first and then he said "I am". He acknowledged the notes were made the night of the incident while he was still at the hospital. (May 14 at pg. 34)
[59] Throughout the interaction, Mr. Hammett stated he's blowing. (May 14 at pg. 36)
[60] He did not demonstrate the instrument in front of Mr. Hammett. (May 14 at pg. 37)
[61] The officer agreed that the tone can stop sounding if someone stopped blowing or if someone was not blowing hard enough to set off a tone. (May 14 at pg. 39)
[62] The officer believed Mr. Hammett was blocking the instrument, but then said that he could hear a continuous flow of air. That is why he did not believe it was a quick burst of air. (May 14 at pg. 40-41)
[63] He knew that if there was continuous air that was not hard enough to set off a tone then the instrument would not accept a sample. (The first time he suggested telling Mr. Hammett this was late in cross-examination.) (May 14 at pg. 42-43)
[64] He agreed a few minutes was not very long to try to procure samples. (May 14 at pg. 45) He denied being frustrated with Mr. Hammett. (May 14 at pg. 47)
[65] He was unaware if there was a head injury. (May 14 at pg. 49)
[66] It would be standard practice for medical personnel to advise him if someone had been medicated. (May 14 at pg. 550)
Evidence of Marcus Hammett
Examination in-Chief
[67] He saw Officer Hodge start setting up the machine and then he had to leave and ended up coming back. He ended up setting the machine up, but it seemed like he was being rushed. He does not know if it was because he had to leave the room. (May 14 pg. 123)
[68] When Officer Muller was speaking to him he was speaking to him, whereas Officer Hodge was more like a drill instructor. He was definitely not the same as he appeared in court. He seemed like a nice guy today in court, but in the hospital he seemed frustrated. (May 14 pg. 123-124)
[69] He understood what was being asked of him, that he was going to blow into a breath tube. (May 14 pg. 124)
[70] He was on the gurney or the bed and the machine (instrument) was set up to the right. He couldn't really see the machine. He was in a semi-prone position half leaning up. In order to lean to the right you have to plant your right foot on the bed which was hard because his foot was cranked the other way and his left arm suffered severe tissue damage with bruising down his entire left arm which later required 23 physio appointments. (May 14 pg.124)
[71] His arm was dead for like two weeks. He could move his fingers, but he could not lift his left arm without the assistance of his right arm. See photos. (May 14 pg. 125)
[72] P.C. Hodge did not seem concerned about him being in pain. (May 14 at pg. 127)
[73] He was somewhat able to breathe properly, but it was hard to move. (May 14 at pg. 127)
[74] He felt he had to move to provide a sample. His first attempt was a quick puff of air because he had never done a test before. (May 14 at pg. 128)
[75] After the first attempt he felt the instructions were clearer; it was clear that he needed to breathe longer. (May 14 at pg. 129)
[76] The second time he blew longer but ended up running out of breath. He felt he was unsuccessful because he didn't blow long enough. He did nothing but improve every time. (May 14 at pg. 129)
[77] After the second try both P.C. Hodge and P.C. Muller said no, no, you have to blow harder and longer and if you don't give us a sample we're going to just ding you with it anyway. When he was unable to give the sample, one of the officers slammed the paper down on the table. He is pretty sure P.C Hodge slammed the paper down, but cannot say 100%. (May 14 at pg. 130-131)
[78] He does not remember blowing in the machine (instrument) three times for one attempt like P.C. Hodge said. He clearly remembers blowing three times. The first was quick because he had never done it before, then he clearly remembers two other times. (May 14 at pg. 131).
[79] Between attempts the officers would interject. They told him to blow longer and harder and he tried to blow longer and harder. (May 14 at pg. 132)
[80] His reaction to their instructions was "I've gotta try to do this." He understood he would be charged if he did not provide a sample. He did not want to be charged and was not concerned that he would blow over the limit because he only had two beers. (May 14 at pg. 132)
[81] He does not feel P.C. Hodge showed patience with him or that he was genuinely trying to get a breath sample from him. He felt he was genuinely trying to provide a breath sample. (May 14 at pg. 133)
[82] P.C. Muller continued to try to talk to him, P.C. Hodge just kind of stood there and the female officer (P.C. Black) was not really in the room. She was in the doorway, but throughout the night he didn't really notice her. During the testing, Officer Hodge was beside him and Officer Muller was at the end of the bed. (May 14 at pg. 137)
[83] When he first got to the hospital there were lots of doctors and nurses around, but when he was interacting with the police there were no doctors standing around. (May 14 at pg. 138)
[84] When being asked to provide a sample, he was thinking he needed to provide a sample to prove his innocence. Prior to starting to provide a sample he did not think he would have a problem. (May 14 at pg. 140)
[85] During the testing he said: "yeah, come on guys. Like, just try and fuckin' give it to me again. Like I need to do this." (May 14 at pg. 142)
[86] He was saying that because they were basically giving up on him and he knew he was going to be charged. He knew he was going to be charged because he noticed agitation in both officers. (May 14 at pg. 143)
[87] During this time his demeanor was not happy at all. He was pretty pissed off at how the events of the whole night had gone down. (May 14 at pg. 144)
[88] He did not hold the breath tube, P.C. Hodge held it. He does not believe he was blocking the mouthpiece intentionally and denies blowing air out of the side of his mouth. (May 14 at pg. 148-149).
Cross-Examination
[89] Officer Muller was fair and reasonable with him. He was not aggressive. Officer Muller was in the room also giving instructions. (June 22 at pg. 35-36)
[90] The nurses were in the room but left. He didn't know if he had a call button. (June 22 at pg. 37)
[91] He responded, "Why would I?" when asked why he did not complain about P.C. Hodge to another officer or person of authority. (June 22 at pg. 38)
[92] He was trying to follow P.C. Hodge's instructions. (June 22 at pg.38)
[93] He did not get any medication until later when he went upstairs. He did not ask for pain medication, but said he was in pain. The medical staff had to leave when the officers were there after he was initially worked on. (June 22 at pg. 39)
[94] He only knows he was given fluids. He does not know if there were painkillers in the fluids but is pretty sure there wasn't. (June 22 at pg. 40)
[95] He agreed Officer Hodge was telling him to blow longer after the first attempt. (June 22 at pg. 42)
[96] P.C. Hodge's demeanour while he was there was frustrated and a bit more aggressive. (June 22 at pg. 43)
[97] He denies blocking the mouthpiece. The officer mentioned he was blocking it. (June 22 at pg. 43-44)
[98] He understood after the first attempt he was to blow longer and harder. He disagrees he was letting air out the side of his mouth. (June 22 at pg. 44)
[99] He denies any interference with the testing process. P.C. Hodge suggested to try different things and he kept improving with each attempt. He did not tell the officer he wouldn't blow. He denied he did not follow instructions. He did not change his behaviour to avoid giving a sample. (June 22 at pg. 45)
[100] He formed a tight seal and in the position he was in it was difficult because the instrument was still off to the side and the tube was still off to the side. He still had to turn his head and body. (June 22 at pg. 46)
[101] He did not tell them the machine (instrument) was not close enough. They were police officers and he was intimidated. Being intimidated did not mean that he did not swear because he was in a lot of pain. (June 22 at pg. 47-48)
[102] P.C. Hodge was going to bring the device (instrument) up to him and it's his job to try and blow. He's not going to tell him how to do his job. (June 22 at pg. 51)
[103] He was not buzzed that night. (June 22 at pg. 51)
[104] He agreed drinking affects decision making and reaction time. He agreed alcohol affects everything when he's hammered. He denied alcohol affects his speech unless he is hammered. (June 22 at pg. 53)
[105] He's not a person who cries when he's drunk, but he does wear his emotions on his sleeve. (June 22 at pg. 55)
[106] When significantly intoxicated he agreed a person could get more emotional. (June 22 at pg. 55)
[107] He denied having more than two drinks. He was not worried about how he would perform on the tests. (June 22 at pg. 55)
Findings of Fact
[108] Based on R. v. WD, I have no reason to reject the evidence of the accused that he was in severe pain caused by the injuries he sustained in the collision. By all accounts, his ankle was so badly broken that his foot faced out from his leg at a 90-degree angle. The airbag had been deployed and no doubt injuries were caused to his upper body as a result.
[109] There is no doubt, based on all the evidence heard at this trial, that Mr. Hammett was loud and using profanities and causing a big upset to other persons in the hospital. He was not an easy man to deal with.
[110] Mr. Hammett has testified that he was in severe pain at the hospital and was upset about crashing his prized car and getting arrested. He does not deny his demeanour.
[111] Mr. Hammett has testified that he was trying to provide a suitable sample and wanted to prove his innocence with respect to intoxication by alcohol. He knew he had to provide a sample and he was trying to do so.
[112] In these circumstances, I am asked by the Crown to find beyond a reasonable doubt that 3 minutes was a reasonable time for Mr. Hammett to provide a suitable sample. I decline to do so in these circumstances. Three attempts in 3 minutes could be considered inadequate even if a person was not in serious pain in a hospital setting. At no time did Mr. Hammett refuse to provide a sample. He said he was trying and wanted to do so.
[113] Accordingly, the Crown has failed to prove the charge of failing or refusing to provide a breath sample and they are not entitled to an adverse inference with respect to the impaired operation charge.
Decision on Count #2
[114] Mr. Hammett is not guilty.
Evidence Relevant to the Impaired Driving Charge
Evidence of Christine Timms
Examination in-Chief
[115] At approximately 2:30 a.m. she head a car accelerate north from Main Street on Millside. She could hear the engine and all of a sudden nothing. (Transcript of Proceedings, September 7, 2017 at page 12)
[116] She thought something was wrong and went to look because she had heard brakes squealing on that corner quite often. It was too quiet and she heard a thud. (pg. 14)
[117] The time from hearing the engine to hearing the thud was about 5 seconds. (pg. 15)
[118] She observed a car in the guardrail. (pg. 15)
[119] The curve is a very sharp curve. (pg. 16)
[120] The driver was in the driver's seat for a couple of minutes. (pg. 17)
[121] He tried to get out and was swearing about his leg and his foot. (pg. 19)
[122] He got on his phone once he was out of the car. (pg. 19) She heard him say the word "bar". (pg. 20)
[123] She then called the police. (pg. 20)
[124] It was approximately 3 minutes between first seeing him and police arriving. (pg. 21)
Cross-Examination
[125] The area where the collision occurred is approximately a 90-degree turn. There is a bridge in the area. (pg. 25) She hears squealing tires quite often in the area. (pg. 26)
[126] In her experience, it is fairly frequent that vehicles misjudge that they are about to take a very sharp turn, and it is not uncommon for a vehicle to be caught off guard by how sharp the turn is. (pg. 25-26)
[127] There are metal strips where the bridge is. There are two strips in between the centre of the guardrail. The vehicle was in the centre of the bridge area. (pg. 27)
[128] The vehicle was less than two car lengths past the metal strip. (pg. 28)
[129] The male said something about being injured and sounded angry and upset. (pg. 31)
[130] She could not say the context in which she heard the word "bar". (pg. 31)
[131] She felt his speech was slurred, but had not mentioned that in her police statement. (pg. 32)
[132] It was clear the male was in a substantial amount of pain. (pg. 34)
Evidence of P.C. Muller
Examination in-Chief
[133] He was dispatched to the collision at 2:52 a.m. and was working alone in his cruiser at that time. He arrived at 2:56 a.m. (Transcript of Proceedings, September 7, 2017, page. 39)
[134] From the call he was aware that the male had exited through a car window. The male was walking with a limp and was making a phone call. (pg. 40)
[135] Upon arrival, the male was standing against the guardrail. (pg. 40)
[136] He believed Officer Black arrived at the same time as he did in a different cruiser and Officer Black was standing and speaking with Mr. Hammett. (pg. 41)
[137] There are bars, restaurants and shops on Main Street about 300 metres from the area of the collision. (pg. 41)
[138] He noticed that Mr. Hammett's right ankle was bent at a 90-degree angle away from his leg. (pg. 42)
[139] He immediately noticed an overwhelming smell of alcohol from approximately five feet away and read Mr. Hammett a caution. (pg. 43) The odour of alcohol was from his breath. (pg. 45)
[140] Mr. Hammett answered questions of where he was coming from and that he was shooting "pools". (It should be noted that since these statements can only be used for the purposes of grounds, the content of the statements is not noted here in detail). (pg. 46)
[141] Mr. Hammett was arrested at 2:58 a.m. (pg. 46)
[142] Mr. Hammett was read his right to counsel and asked if he understood. He responded "Not really" to the question "Do you understand?" P.C. Muller then explained the right to counsel in plain language and Mr. Hammett indicated that he would like to call duty counsel. (pg. 47-48).
[143] P.C. Muller then read a caution and Mr. Hammett indicated, "I don't understand anything right now." After the caution was re-read he responded, "I don't understand." The caution was then explained in plain language and he indicated, "Yes, I understand." (pg. 50-51)
[144] The paramedics then commenced treatment on Mr. Hammett. (pg. 51)
[145] After the treatment, P.C. Muller read the breath demand and Mr. Hammett was asked if he understood. Mr. Hammett responded, "No, I don't." He was then explained the demand in plain language. When asked if he understood, he responded: "No, I'm in a lot of pain. I don't understand anything right now." (pg. 53)
[146] Mr. Hammett was relatively cooperative. He wasn't belligerent or arguing, he just stated that he didn't understand. (pg. 53)
[147] P.C. Muller did not observe any other medical difficulties. (pg. 54)
[148] P.C. Muller spoke with Dr. Gilbert about whether Mr. Hammett could provide a sample and was given approval to proceed. (pg. 57)
[149] After speaking with duty counsel, Mr. Hammett stated "I drank, I drove, I fucked up." (pg. 67)
[150] As documents were being served, Mr. Hammett initially said "Got it," but then wanted to read the documents. As he read them he was emotional and crying and said that he "fucked up". (pg. 68)
[151] He stated he would not sign anything until he read it but was emotional when reading. (pg. 69)
[152] The Staff Sergeant told him he could just note that he refused to sign. (pg. 70)
Cross-Examination
[153] P.C. Muller did not recall there being a connector part to the road. (pg. 72)
[154] He did not really inspect the road or what might have caused the accident. (pg. 73)
[155] Prior to his arrival on scene the only indication of alcohol is that someone had overhead the word "bar". (according to the call text). (pg. 73)
[156] He cannot say for certain when P.C. Black arrived. (pg. 73) He cannot say if she arrived before or after the arrest. (pg. 74)
[157] P.C. Muller agreed that if something is not in his notes, he does not have the most solid memory of it. (pg. 75)
[158] Mr. Hammett was leaning against the guardrail and the officer could tell something was wrong because his ankle was in the wrong direction. Mr. Hammett was talking about being in pain. He was visibly distraught from the pain. (pg. 76).
[159] The officer did not note any problem with Mr. Hammett's speech aside from him saying "pools". P.C. Muller acknowledged more was said than was noted in his notes during this pre-arrest conversation. (pg. 77)
[160] Mr. Hammett spoke casually throughout their interactions. (pg. 78)
[161] Mr. Hammett's vehicle was lowered. The officer agreed that vehicles lowered like this slow down for bumps or roadway impediments. (pg. 79)
[162] There was only one word "pools" throughout the entire investigation that was notable in the way he said it. (pg. 80)
[163] P.C. Muller agreed that recent consumption of alcohol can make an odour seem stronger and that the strength of the odour of alcohol did not necessarily tell him how much someone drank. (pg. 80-81)
[164] During the initial interaction Mr. Hammett was in pain and breathing heavily.
[165] Mr. Hammett's demeanor was cooperative and he wasn't being belligerent or anything of that nature prior to going to the breath technician. (pg. 100)
[166] No notes were made about a shoulder injury and he does not recall a shoulder injury. (pg. 101-102)
[167] He did not make notes about injuries because that's what a breath technician does. (pg. 102)
[168] Mr. Hammett was in P.C. Muller's continuous custody. He was always within the officer's eye sight. (pg. 103)
[169] Mr. Hammett was visibly in pain throughout the time the breath testing procedures were occurring; a substantial amount of pain. (pg. 104)
[170] He does not recall a specific shoulder injury, but agreed that a left shoulder injury was a common injury from the seat belt in motor vehicle collisions. (pg. 105)
[171] Mr. Hammett made comments that he "fucked up" but never indicated that he was impaired and actually made comments about not being buzzed. His comments were the opposite of (admitting) to being intoxicated. (pg. 105)
Evidence of P.C. Hodge
Examination in-Chief
[172] He received the grounds sheet from P.C. Muller. (See exhibit 2) (Transcript of Proceedings, September 7, 2017 at page 115)
[173] There was a strong odour of alcohol from Mr. Hammett's breath. (September 7 at pg. 120)
[174] He was extremely boisterous, yelling and disturbing patients. There was redness within his eyes and they were watery. His cheeks were flushed. (Transcript of Proceedings, January 10, 2018 at page 5)
Cross-Examination
[175] Mr. Hammett's speech was good, his pupils were normal. Red and watery eyes is something often observed when airbags go off. (May 14 at pg. 19)
[176] There was nothing in terms of his physical presentation that suggested impairment except the odour of alcohol and his red, watery eyes. (May 14 at pg. 20)
Evidence of Marcus Hammett
Examination in-Chief
[177] He was off from work early that night, around 11:30 p.m., and went to play pool with three co-workers. They split two pitchers of Coors Banquet beer evenly and he had two pints while playing pool. (Transcript of Proceedings, May 14, 2018 at page 104-105)
[178] He left after last call. Before they got in their cars they had a smoke by their cars before leaving. One of his buddies told him to take the street up and it's going to curl around to the main street. (pg. 107)
[179] His car was heavily modified to drive like a racecar. He was very familiar with the car's handling. (pg. 109-110)
[180] He did not feel impaired. If drinking heavily he could drink four pitchers of beer on his own. (pg. 110-111)
[181] He started driving up the street; there were trees and it was a little dark.
[182] The corner came up pretty quick. When he hit the bridge linkage his suspension bounced and he lost traction temporarily. He was still travelling fast and his momentum pushed him towards the curb. Once his tire hit the curb, he had no traction and went straight into the guardrail. (May 14 pg. 111-112)
[183] He did not anticipate a 90-degree turn like that. There was no signage and it was only when he made it to the lights where the turn was that it was apparent that there was a turn. (May 14 pg. 112)
[184] He would only have been able to maintain control if he was driving slower. In this circumstance, once he hit the connector and started sliding there was no way to maintain control. (May 14 pg. 113)
[185] He feels that if he did not have anything to drink, the accident would still have occurred. He would drive in that manner any opportunity he had when driving that car. (May 14 pg. 114)
[186] There was a smell in the vehicle and he wanted to get out to get some fresh air but then realized his foot was in the opposite direction. (May 14 pg. 114)
[187] He mustered enough energy to hop, skip and "half assed" crawl to the guardrail where he ended up sitting down. The airbag went off and the seatbelt locked on his left shoulder. (May 14 pg. 114-115)
[188] He described the pain as a 20 if it was a scale from 1-10. (May 14 pg. 116)
[189] He knew his buddies were just around the corner and knew he needed medical assistance. He did not think the police or ambulance would arrive that quick. In the call he told his friend his car is fuckin' smashed and they need to come back. (May 14 pg. 116)
[190] He was yelling and doesn't know how someone would be calm with their foot facing the other way. (May 14 pg. 117)
[191] He called his wife after his friends so she wouldn't be worried when she woke up. (May 14 pg. 117)
[192] He was on the phone with her when the police and ambulance showed up. (May 14 pg. 118)
[193] Once police showed up they told him to get off the phone. He cannot remember exactly what the police said to him and it all happened so fast from their arrival to him being on the gurney. (May 14 pg. 118)
[194] He was feeling horrible with "crazy acute" pain. He was pretty shaken. He does not recall saying he was shooting "pools" but probably told the officer what he was doing. (May 14 pg. 118- 119)
[195] In the ambulance when the officer was speaking to him he was more or less trying to collect himself and make the pain go away. He was not really focused on what the officer had to say, he was trying to look at the ceiling or close his eyes and make the pain go away. (May 14 pg. 119)
[196] Once at the hospital, doctors were working on him and he was writhing in pain. He was freezing and they gave him a warm blanket to stop shivering. (May 14 pg. 119)
[197] He was given IV fluids. He does not recall conversations regarding medication. He does not recall a substantial reduction in pain once he got to the hospital. The pain was intense and then would dissipate for a bit and then come back more intense. It was a throbbing pain, coming in and out. (May 14 pg. 120)
[198] He works in a warehouse and swears a lot as part of his vocabulary. He doesn't know who would be nice and calm and quiet when their ankle was twisted the other way. He was in a significant amount of pain. (May 14 pg. 120-121)
[199] His general reaction to a frustrating situation is yelling and swearing. He was swearing and yelling here because of the pain and his car. (May 14 pg. 121)
[200] He was not worried that he would fail the breath test. If he didn't do it he would be charged anyway so he might as well try to give a sample. (May 14 pg. 121)
[201] When saying he "fucked up" he was thinking that he smashed his car and broke his ankle. He had beer on his breath and they were arresting him for being intoxicated. (May 14 pg. 121)
Cross-Examination
[202] His friends told him there would be a curve on the street and it would curve to the highway. He agreed that he has a good sense of direction but he is usually not south of the 401 in Milton. (June 22 at pg. 8-9)
[203] There was no recent significant modification to the vehicle. (June 22 at pg. 10)
[204] He knew the vehicle was trickier to drive over bumps. (June 22 at pg. 11)
[205] When he drove this vehicle, it was not uncommon for him to drive quite quickly. He liked to do that and that's why he put all the work into the vehicle. (June 22 at pg. 12)
[206] He did not agree that he had to put a lot more attention into driving it, but agreed that you have got to pay attention when you're driving. At those speeds you would have to pay a lot more attention. (June 22 at pg. 13)
[207] You would lose control of a normal car at those speeds easier than you would with his vehicle. (June 22 at pg. 13)
[208] If something outside the normal driving conditions happened, it would have a significant effect on his vehicle. (June 22 at pg. 13-14)
[209] He has "opened up" this vehicle in areas familiar or unfamiliar. (June 22 at pg. 15)
[210] His friend didn't say it was a significant turn. He had been told that the road bends around to the main road. He knew he would have to turn. (June 22 at pg. 15-16)
[211] He has taken a turn like that tons of time before no problem. Usually you tend not to brake. You slow before the turn, then accelerate into it. He did not slow down on this occasion or brake at all before the turn. (June 22 at pg. 17)
[214] He bounced off the guardrail, and he denies that he was significantly around the turn when he lost control. He was already turning. (June 22 at pg. 21-22)
[212] He would have no idea if there was oncoming traffic. He does not think there is anywhere to cross the road for pedestrians. (June 22 at pg. 23)
[213] He knew he had hit the guardrail and the curb. (June 22 at pg. 25)
[214] He remembers Officer Muller telling him his buddies were there but did not see the officer speaking with them or see them. He knows they were there before the ambulance left because the officer came with him in the ambulance. (June 22 at pg. 31-32)
[215] He didn't think an ambulance would get there that fast. That's why he called his buddies, so they would be able to take him. He did not call police because he was trying to seek medical assistance and that was what was on his mind at that point and his buddies were literally 30 seconds down the road. (June 22 at pg. 33)
[216] He could not leave his vehicle there because one friend could stay with the vehicle and the other one could take him to the hospital. (June 22 at pg. 34-35)
Findings of Fact
[217] The physical indicia of impairment by alcohol in this case consist of the following:
the strong odour of alcohol emanating from the breath of the accused, which is evidence of consumption only;
red and watery eyes, which likely was caused by the air bag being deployed in the accident;
statements made after he spoke to Duty Counsel in the hospital that he was "fucked", which is consistent with his trial testimony that he was referring to smashing his prized car and badly injuring his own body.
[218] The driving evidence consists of a single motor vehicle collision in the following circumstances:
the accused was driving his souped-up racing type car;
the roads were dry and the weather was clear;
he was driving when it was dark and early in the morning in an unfamiliar area;
he knew a turn was coming ahead before he could enter onto the highway;
he did not know that the turn was going to be a 90-degree turn and there was no signage to warn him according to his unchallenged testimony;
he was driving this car with speed (opened-up) as he often does when he has a chance;
he hit the bridge linkage and the suspension of his car bounced and he lost traction temporarily and the momentum pushed him toward the curb;
once his tire hit the curb, he had no traction and went straight into the guardrail;
Ms. Timms testified that she hears lots of squealing tires as drivers negotiate this tight turn.
[219] No Accident Reconstructionist was called in this case. The Crown submits I should apply Newton's Law of Physics in my determination as to how this accident occurred (page 9 of written submissions). I refuse to do so. If the Crown needs this kind of evidence to prove their case beyond a reasonable doubt, it is up to them to do that.
[220] I am left with frail, less than slight, physical signs of impairment. The evidence has established that the accused was speeding and failed to negotiate a 90-degree unmarked turn after drinking some beer.
[221] Mr. Hammett has testified that he was not impaired to operate a motor vehicle based on the amount of beer he consumed. I have no reason to question his testimony based on the evidence called.
[222] Mr. Hammett is guilty of Careless Driving under the HTA and/or Dangerous Driving under the CCC, but he was not also charged for those offences, and he could have been.
[223] There is a legal difference between making reasonable inferences and arriving at a decision based on the standard of proof on the balance of probabilities, and proof beyond a reasonable doubt. As stated by the Ontario Court of Appeal in R. v. Stellato, (1993), 78 C.C.C. (3d) at page 384:
"…impairment is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more or less than required for any other element of a criminal offence: courts should not apply tests which imply a tolerance that does not exist in law. In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out."
[224] I have considered the evidence in this case, in its entirety, and I have concluded that the Crown has failed to meet the standard of proof beyond a reasonable doubt on the element of impairment.
Decision on Count #1
[225] Mr. Hammett is not guilty.
Released: November 6, 2018
Signed: Justice Lesley M. Baldwin